Sri Lanka (2nd cycle)

Recommendations: Decriminalize consenting homosexual relationships between persons over the age of consent by repealing Section 365A of the penal code; Strengthen the measures to eliminate all discriminatory treatment based on sexual orientation or gender identity

Status: Rejected.

I. Key issues/recommendations identified by NGOs

Review the report of the High Commissioner on sexual orientation and gender identity, and consider implementing the recommendations.

II. Excerpts from input reports

National report

No references to sexual orientation or gender identity.

Compilation of UN information

III. Implementation of international human rights obligations, taking into account applicable international humanitarian lawD. Right to privacy, marriage and family life38. UNCT highlighted the concern of CEDAW at the criminalization of consensual adult same-sex relationships by virtue of Section 365A of the penal code and recommended that this provision be repealed. UNCT reported that many individuals from these communities faced ongoing violence and discrimination.

Summary of stakeholder submissions

I. Information provided by other accredited national human rights institutions and other stakeholdersA. Background and framework2. Constitutional and legislative framework

5. JS1 stated that persons of diverse sexual orientation and gender identities were not explicitly protected from discrimination by the Constitutional provisions regarding non- discrimination thereby contributing their vulnerability.

C. Implementation of international human rights obligations, taking into account applicable international humanitarian law1. Equality and non-discrimination16. Joint Submission 2 (JS2) recommended taking immediate and targeted steps to embody the principles of equality and non-discrimination on the basis of sexual orientation in public and private in the Constitution of Sri Lanka and ensure the effective realization of these principles.

4. Right to privacy, marriage and family life46. JS2 recommended immediately decriminalizing same-sex sex relations between persons who are over the age of consent and ensuring that the same age of consent applies to sexual activities between persons of the same sex as persons of a different sex. JS2 also recommended immediately including the right to privacy in the national Constitution.

III. References to SOGI during the Working Group review

Canada and Argentina made recommendations on sexual orientation and gender identity, focusing on decriminalisation of same sex relations and on discrimination (see below).

IV. Conclusions and/or recommendations

129. The recommendations below did not enjoy the support of Sri Lanka:

129.23 Decriminalize consenting homosexual relationships between persons over the age of consent by repealing Section 365A of the penal code (Canada);

129.59 Strengthen the measures to eliminate all discriminatory treatment based on sexual orientation or gender identity (Argentina );[1]

V. Adoption of the Report

The report of the working group was adopted at the 22nd regular session of the Human Rights Council in March 2013.

Statements by States and other stakeholders

Equal Ground, Sexual Rights Initiative and The Women’s Support GroupWe welcome the voluntary pledges made by the Sri Lankan Government especially in regard to setting up of gender focal points to be appointed to each Line Ministry. We urge the Government to set this up as soon as possible to have gender perspective and focus in every policy and programme.

We are however disappointed with the lack of engagement or acceptance of recommendations on non-discrimination on the basis of gender identity. A true gender focus in the policies and programmes can only be possible if the laws and policies are also in fact non-discriminatory. The Vagrancy provision under section 399 of the Penal Code is still being used to prosecute and harass transgender persons under “cheating” or “impersonation”. We urge the State to strongly condemn such prosecutions and ensure that such violations against people only because of their gender identity is not continued. In this regard we strongly urge the government to amend Article 12(2) of the Constitution to increase the scope of the non-discrimination clause.

We are also concerned by the lack of response on recommendation 128.24 on decriminalising homosexual relationships between consenting adults by repealing Section 365A of the Penal Code. The lack of protection of the right to equality and non-discrimination for members of LGBT communities in Sri Lanka leads to stigma and discrimination against them as well as to their being rendered invisible in the eyes of society and of the law. This factor plays a role in deterring lesbian, gay, bisexual and transgendered people from reporting acts of discrimination, abuse and violence that they face to the relevant authorities.

Regrettably, the National Human Rights Action Plan also does not mention any of the specific violations faced by persons belonging to sexual minorities and any measures to protect the rights of groups and individuals belonging to sexual minorities.

We urge the Government, to take a holistic approach while dealing with violations of human rights and to repeal laws that decriminalise persons belonging to specific communities based on their gender or sexual orientation and affirm the rights of persons belonging to sexual minorities. We also urge the government to take a strong stand towards equality and non-discrimination by making the suitable amendment to the Constitution.